After granting a limited five-year exemption to United Parcel Service (UPS) from some provisions of the ELD mandate, the FMCSA is now going to allow all motor carriers (not just UPS) two new temporary ELD mandate exemptions.
The approved exemptions have started on October 20, 2017, and will end on October 20, 2022.
Considering how the ELD mandate’s implementation date will take effect this December 18, 2017, the additional exemptions approved by the FMCSA will surely aid carriers in complying with the ELD rule.
UPS’s Four-Part Request to the FMCSA
According to the Government Publishing Office’s Federal Register, these are the four exemption requests that UPS asked from the FMCSA:
- To allow an alternative ELD phase-in method for fleets using an Automatic On-Board Recording Devices (AOBRDs) that are compliant with the regulations.
- An exemption from the requirement that an electronic logging device (ELD) automatically records certain data elements upon a duty status change when drivers are not in their trucks.
- Allow ELDs to be configured to a special driving mode for yard moves where drivers are not required to re-input their yard move status every single time their vehicle is turned off.
- For non-driver UPS employees to be allowed to annotate “on property—other” in the ELDs when the trucks they operate move just less than a mile within UPS property.
Two Exemption Requests Approved by the FMCSA
Out of the four exemptions requested by the UPS, only two were approved by the FMCSA. The agency issued clarifications on the other two waivers.
These are the approved exemptions:
- UPS drivers can change their duty status even when they’re away from their vehicles.
- UPS can perform multiple yard moves without having to re-input the “yard move” status several times.
1. Drivers Changing Duty Statuses Away from Vehicles
UPS contended that their drivers are paid hourly (as per the bargaining agreement with their drivers) and would often have to clock in and out while in the dispatch building, and not in their vehicles.
If their ELDs are not connected to the vehicle’s Electronic Control Modules (ECMs), then the change of duty status will not be automatically recorded.
UPS also states that in a typical UPS location, their drivers spend about 24 minutes before entering their trucks and 22 minutes after exiting their vehicles on the clock. In a lot of situations, the truck that the driver will be (or was) operating will be used by another employee while the driver is still on duty for UPS.
While this scenario is in compliance with the bargaining contract they’ve reached with their drivers, it prevents UPS from complying with one of the ELD mandate’s provisions.
According to the FMCSA, they approved the exemption request since in situations where drivers are using portable ELDs and are trying to change their duty statuses while away from their vehicles, “It is not practicable for the ELD to automatically record the data elements required by section 395.26(c) and section 395.26(g), as the ELD is not synchronized with the engine’s ECM at that point.”
The FMCSA adds, “In the final rule, FMCSA stated ‘FMCSA clarifies that the ECM data or ECM connectivity data must only be captured when the engine is powered, but the ELD is not prohibited from recording information, if desired, when the engine is off.’”
In the scenario described above, drivers need to annotate their ELD record to specify the appropriate status in accordance with section 395.30.
2. Special Driving Mode for Yard Moves
UPS offered a series of proposed controls to ascertain that the ELD will change from the “Yard Move” status to “Driving,” such as:
- The driver inputs the “driving” mode
- The truck’s speed exceeds 20 mph
- The truck exits UPS’s geofenced area
When these controls are implemented and adhered to, the misuse of the off-duty “Yard Move” status can be avoided.
The FMCSA agreed that allowing carriers to have this special driving mode for yard moves will, “achieve a level of safety that is equivalent to or greater than the level that would be obtained under the regulation.”
Alternative Method of ELD Phase-in
UPS intends to buy approximately 1,530 new vehicles next year — in between December 18, 2017, and December 16, 2019.
Out of the 1,530 vehicles that they’ll purchase, 1,061 will replace their existing trucks, while 469 vehicles are entirely new ones bought for the purpose of accommodating their projected growth.
UPS requested for a temporary exemption from section 395.8(a)(1)(i) so they can still install AOBRDs in new trucks and tractors delivered to their sites even after the December 18, 2017, ELD compliance date.
The FMCSA has issued a clarification regarding this request through their website’s FAQ section, specifically in question #7 of their “Voluntary Usage and Compliance Phases” section.
Simply put, in UPS’s case, they are permitted to install AOBRDs that are in their existing trucks to the new 1,061 tractors that they’ll purchase until December 16, 2019. However, ELDs would have to be installed into the 469 entirely new trucks that they’ll purchase to accommodate projected growth.
Trucks Used Within UPS Grounds by Employees
Section 395.26(h) of the Federal Motor Carrier Safety Regulations (FMCSRs) requires ELDs to record certain data elements automatically when a truck’s engine is powered up or down.
In line with this, UPS revealed that they currently have 1,434 wash or fuel employees who operate their fleets within UPS property.
In these operations, fuel employees fill up as many as 60 vehicles in one shift.
The FMCSA clarified that since these employees do not drive on public roads, they are not subject to the Hours of Service (HOS) rules and are not required to use ELDs.
The FMCSA’s Requests for Public Comments
On June 9, 2017, the FMCSA published a notice about UPS’s application and requested for public comments.
The agency received 57 comments where most of the commenters frowned upon UPS’s exemptions saying that the company should adhere to the ELD rule which the company so actively supported.
These are some of the sentiments shared by the truckers who commented:
“This seems to be a reasonable request, but it should be applied to all motor carriers.” — Carly Ercolini
“This request for exemption is unfounded, and should not be approved. As UPS is a member of the American Trucking Association, which lobbied heavily for the implementation of the eld mandate under the guise of safety, I see no reason to allow this exemption. The rule applied to all equally is what was mandated by Congress, and an exemption to that goes against everything both the FMCSA and the members of the ATA, including UPS, so vehemently fought for. This mandate was made as a one size fits all regulation, and as every small fleet owner and owner operator can clearly state: trucking is not a one size fits all industry. Many small fleets and owner operators run into this same situation, and if this exemption cannot be applied equally under the law to all trucks, then it should not be granted to one. This is what they wanted, let them live with it.” — R Martens
“If UPS gets exemptions on ELDs then the same exemptions need to be applied to ALL carriers large and small. Otherwise, it could be viewed as discrimination against the smaller carriers.” — Amanda J
To learn more about how truckers responded to the public comment that the FMCSA requested, you can view Docket Number: FMCSA-2017-0054.
Rescinding the Exemptions
According to the FMCSA, the exemptions will take effect for a limited period of 5 years unless they decide to cancel them at an earlier date.
The agency pointed out three reasons why they might rescind the exemptions:
- Carriers failing to comply with the rules and policies of the exemptions.
- The exemptions resulting in a lower level of safety compared to what was maintained before the exemptions were approved.
- Continuing the exemptions will not be consistent with the objectives and goals of 49 U.S.C. 31136(e) and 31315(b).
The agency also mentioned, “Interested parties possessing information that would demonstrate that motor carriers or drivers participating in either of the exemptions are not achieving the requisite statutory level of safety should immediately notify FMCSA.”
The ELD mandate takes effect from December 18, 2017.
Considering the compliance deadline is less than 50 days from now, it is crucial for carriers to install ELDs as soon as possible.
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